Harris v. State

• Decision Date: 13 July 2015
• Docket Number: No. A15A0634.,A15A0634.
• Citation: 775 S.E.2d 602,333 Ga.App. 118
• Parties: HARRIS v. The STATE.
• Court: Georgia Court of Appeals

333 Ga.App. 118

775 S.E.2d 602

HARRIS

v.The STATE.

No. A15A0634.

Court of Appeals of Georgia.

July 13, 2015.

John Walter Kraus, for Appellant.

Elizabeth A. Baker, Asst. Dist. Atty., Tracy Graham–Lawson, Dist. Atty., for Appellee.

Opinion

McFADDEN, Judge.

Andre Harris appeals from his convictions of child molestation and enticing a child for indecent purposes. He challenges the sufficiency of the evidence, the allowance of certain rebuttal testimony, a jury charge on the asportation element of enticing a child for indecent purposes, and the effectiveness of his trial counsel. However, there was sufficient evidence to support the jury's verdict, Harris opened the door to the rebuttal testimony, the court correctly charged the jury on asportation, and Harris has failed to show that his counsel's performance was both deficient and prejudicial. Accordingly, we affirm.

1. Sufficiency of the evidence.

On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This [c]ourt does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.

Hayes v. State, 292 Ga. 506, 739 S.E.2d 313 (2013) (citations omitted).

So viewed, the evidence shows that Harris is the biological father of K.H. In August 2010, when K.H. was 11 years old, she moved from her mother's home in Spalding County to Harris' home in Clayton County, where he lived with his wife and their two minor children. Unbeknownst to K.H.'s mother, at that time, Harris had child molestation charges pending against him, arising from an incident in 2009 involving a nine-year-old girl. In March 2011, while K.H. was still living with him, Harris pled guilty to two counts of child molestation. As a registered sex offender, he could no longer live in the same house because it was near a school. So in September 2011, Harris moved his family, including then 12–year–old K. H., to another house in Clayton County.

Shortly after the move to the new house, Harris began entering K.H.'s bedroom in early morning hours once or twice a week. Harris would awaken K.H. and tell her to come with him to massage his back. Harris would then take his daughter to another room in the house, usually his music studio. Harris would lie face-down on the floor and instruct K.H. to sit on his back and massage it with her buttocks by moving in a circular motion. He would then turn over, lie on his back, and instruct her do the same thing while sitting on his crotch area, having her massage his genitals with her buttocks by moving her hips in a circular motion. After approximately 20 minutes, Harris would tell her “good job” and allow her to return to her bedroom. He also instructed his daughter not to tell others about the incidents.

In December 2011, K.H. moved back to live with her mother. In April 2012, she went to visit Harris and his family during spring break. On that occasion, while the rest of the family was at church, Harris called K.H. into his bedroom where he again had her sit on him and move her buttocks in a circular motion. K.H. could feel that his penis was hard and that it moved as she rotated her buttocks. Harris apparently ejaculated on K. H.'s clothed buttocks as she subsequently discovered what she described as a white gooey substance on the back of her shorts.

Harris testified on his own behalf, denying that the molestation of K.H. had occurred and claiming that the prior acts of molestation of the nine-year-old girl had been an isolated incident and that he had never done anything like that before. On rebuttal, the state introduced testimony from the aunt of that nine-year-old victim. She testified that on several occasions when she was 14 years old, Harris had taken her to a hotel room and had sex with her.

a. Child molestation.

Although Harris has not raised any argument concerning the sufficiency of the evidence supporting his child molestation conviction, we have reviewed the evidence and conclude that there was sufficient evidence from which the jury was authorized to find Harris guilty beyond a reasonable doubt of child molestation. See OCGA § 16–6–4(a)(1) (child molestation committed when person does any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of the child or the person); Madison v. State, 329 Ga.App. 856, 863(1)(a), 766 S.E.2d 206 (2014).

b. Enticing a child for indecent purposes.

“A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16–6–5(a). This offense “has been held to include the element of asportation, and our Supreme Court has held that this element is satisfied whether the taking involves physical force, enticement, or persuasion. Further, any asportation, however slight, is sufficient to show the taking element of enticing a child for indecent purposes.” Whorton v. State, 318 Ga.App. 885, 887(1)(a), 735 S.E.2d 7 (2012) (citations and punctuation omitted). Here, the indictment charged that between September 1, 2011 and April 30, 2012, Harris “did unlawfully solicit, entice and take [K.H.], a child under the age of sixteen years, to Rex, [Clayton County, Georgia,] for the purpose of child molestation.”

Harris argues that the evidence was insufficient to support the guilty verdict on this charge because he was not involved in the initial decision to move K.H. to his house in Clayton County, and instead that decision was made only by the child's mother and grandmother. Thus, Harris reasons, there is no evidence that he initially enticed the child to his house. However, Harris has overlooked his own testimony that he was in fact involved in the initial decision to move K.H. to his house. He testified at trial that K.H. came to live with him in 2010 after he and the child's mother had a conversation about the mother's unstable living condition and they “came to the conclusion that it would be best for [K.H.] to come live with [Harris.]” Thus, contrary to Harris' argument, his own testimony provides evidence that he was in fact involved in the decision to move the child to his house.

Moreover, not only is the argument based on an incorrect factual premise, but it is also based on a misreading of the enticement offense alleged in the indictment. Contrary to Harris' argument, the indicted enticement charge was not based on the victim's initial move to the first house in Clayton County where Harris and his family were living in 2010. Rather, it is clear from the plain language of the indictment, as well as the evidence introduced at trial, that the enticement offense as charged actually took place at the second house that Harris moved his family to in September 2011, after he had pled guilty to the prior child molestation charges and had become a registered sex offender. Having reviewed the evidence in the light most favorable to the verdict, we conclude that “the evidence was sufficient for a rational trier of fact to find [Harris] guilty of [the indicted offense of] enticing a child for indecent purposes beyond a reasonable doubt.” Hicks v. State, 254 Ga.App. 814, 816(3), 563 S.E.2d 897 (2002) (punctuation omitted).

Harris also argues that the state failed to prove venue in Clayton County for the enticement offense. He claims that K.H. was first told in Spalding County, where she had lived with her mother, that she would be moving to Harris' home in Clayton County, and therefore venue for the crime of enticement would be in Spalding County. However, Harris has not cited any evidence showing that the child was first told of the move in Spalding County. Moreover, the argument is based on the same misreading of both the indicted enticement offense and the evidence presented at trial. As noted above, Harris was not charged with committing any enticement offense at his first house in Clayton County where K.H. initially moved to in 2010; rather, he was charged with enticing the child for indecent purposes at the second house between September 2011 and April 2012, and the evidence presented at trial supported that charge. Contrary to Harris' argument, the uncontradicted evidence, including his own testimony, “was sufficient to establish venue in [Clayton] County. [Cit.]” Lowther v. State, 263 Ga.App. 282, 283(2), 587 S.E.2d 335 (2003).

2. Rebuttal witness.

Harris contends that the trial court erred in allowing the rebuttal witness to testify about Harris having had sexual relations with her when she was 14 years old. However, Harris opened the door to such testimony with his own testimony. While testifying on direct about his prior guilty plea to two counts of child molestation, Harris claimed that he had accepted responsibility for that lone incident and that he had “never done nothing like that” either before or since that incident.

“A witness may be impeached by disproving the facts testified to by the witness.” OCGA § 24–6–621. Here, the state was properly allowed to impeach Harris by calling the rebuttal witness to give testimony disproving Harris' testimony by showing that he had in fact engaged in improper sexual contact with another minor girl prior to the child molestation incident to which he pled guilty. “[W]hether the [s]tate should be permitted to introduce evidence after the defendant has closed his testimony ... is a matter resting in the sound discretion of the court. And given that the rebuttal evidence contradicted [Harris'] testimony, [Harris] has not shown that its admission [was a] ... breach of that discretion.”

Brown v. State, 300 Ga.App. 359, 365(6)(d), n. 2, 685 S.E.2d 377 (2009) (citations and punctuation omitted).

3. Jury...